For geopolitical analyses go to THE INDICTER Magazine [theindicter.com]. The Professors' Blog, founded 2005, is Sweden's earliest blog written by univerisity professors (In Swedish: "professorsblogg"). Founded by Prof. Marcello Ferrada de Noli Ph.D. (Med. dr. i psykiatri, Karolinska Institutet) Professor Em. Epidemiology. Prof. de Filosofía. Former Research Fellow & Lecturer in Social Medicine, Harvard Medical School

Blind Trust, Blind Justice

Publisher’s Note: Free-lance columnist Bella Magnani, based in London, submitted this interesting piece to the Professors blog on November the 4th. Although it was due for publication the 7 of November, for reasons accountable to this blog her contribution is finally published only now. Her subject is nevertheless a “classical” item in the on-going discussions regarding the Swedish process against Julian Assange. It is also highly actualized in the last events of both London and Stockholm in the aftermath of the extradition verdict of November the 2nd. Dagens Nyheter reports in Sweden that Assange’s legal team filed today (15 November) the appeal to the Supreme Court in London. This verdict will be given by the High Courts of Justice the 5th of December (see details of the appeal document in Sweden Versus Assange).

As the Swedish prosecutors further prepare things for their asked interrogation of Julian Assange, the Swedish forensic journalist Stefan Lisinski had a few comments on the legal aspects of the case in an article published in Dagens Nyheter (article not on-line, scanned here) few days ago. He referred, on the issue also discussed here by Bella Magnani, that “a damaged condom has been filed as evidence . . . However, the condom is totally deprived of DNA-trace, which would make difficult to prove than someone had intentionally broken it apart”. [1] Lisinki’s brief mention about the condom issue was probably the very first such comment on the matter in the Swedish mainstream media although it has been discussed in detail in Swedish Net-forums, most notably theFlashback’s Assange-thread].

Since the 100-page Swedish police protocol file leaked onto the internet in February 2011 it has been widely known that the SKL (Sweden’s national forensic laboratory) failed to find any chromosomal DNA – either male or female – on the torn used condom which Complainant AA gave to police 12 days after the event, as evidence of her allegations. For anyone who doubts this fact, it is found here: on page 77 of the police protocol (FUP)[pdf]

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Now, at that point – 25 October 2010 – one would hope that a competent and impartial investigations team would turn towards investigating how this forensic finding came about. Sweden takes very seriously the issue of making false claims or presenting false evidence in sex crime cases, which is punishable with a 2-year prison sentence. In this particular case, however, the lead investigation officer, Mats Gehlin, simply asked the SKL to run the test again (page 81 of the FUP). In fairness, the first result does mention a tiny speck that might be “something”, which a second test later found to be a very small sample of mitochondrial DNA. This is significant for two reasons: first, mitochondrial DNA is not uniquely identifying in the same way as chromosomal DNA and, more importantly, a sample which contains mitochondrial DNA but no chromosomal DNA can only come from hair and nails. And, of course, a used condom should be awash with chromosomal DNA from both participants – but this one has none.

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Chief-Prosecutor Marianne Ny

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Its second significance – and far more important to Julian Assange’s battle against extradition to Sweden – is that Marianne Ny, the Swedish prosecutor, was in possession of these forensic facts, which surely bring into question the credibility of AA’s testimony and, perhaps, by extension the testimony of Complainant SW (given that it was AA’s close personal friend and political colleague Irmeli Krans who wrote SW’s witness statement), for some time before she issued the Interpol Red Notice and the European Arrest Warrant seeking Assange’s surrender. Yet here is how Ny describes allegation 2 – the ‘deliberately torn’ condom incident – on the face of the EAW:

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2. Sexual molestation – On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.

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In view of the forensic-evidence issue discussed above, one has to ask whether this procedure from the part of the Swedish prosecutor ought itself to be the subject of some sort of investigation. But who is asking that question? Not the Swedish authorities, nor the British courts (this is an EAW case, so they aren’t allowed to), and not a single UK mainstream newspaper or journalist – supposedly the people holding power to account on our behalf – has even mentioned this lack of DNA evidence or its implications for the case. Honourable exception: The Telegraph, once, back in February – since then, nothing.

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So, what’s going on? The case being heard by the British courts is solely about the legal technicalities of the extradition request – the UK judges are prevented by the EAW system from even considering the evidence behind an EAW, apart from in wholly exceptional circumstances (and Assange’s case, we are told, is not exceptional) – all of that is to be left for the courts of the requesting Member State to deal with. Surely, then, there’s no question of contempt of court if the UK media discuss the facts of a case which may, or may not, be brought to trial in a foreign jurisdiction at some point in the future?

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Isn’t that what journalists are meant to do – investigate and present the truth to their readers? When was it decided that the restrictions placed upon our judges by the EAW system should also extend to our press? This matters because, even when UK courts do give the underlying evidence behind an extradition request some cursory scrutiny, there’s an overwhelming imperative towards mutual recognition of disparate judicial systems built into the Framework Directive. The full High Court judgment [pdf] handed down this week states that: “The evidence in the file showed that the condom was examined by the Swedish National Laboratory of Forensic Science. The conclusion of the expert was that there was nothing to indicate that a tool had been used, but that the damage to the condom was created by the wear and tear of the condom” (para 94), but this gets lost in the middle of a long and complex explanation of various legal authorities regarding “deception” in rape cases and how the conduct described on the face of the EAW therefore meets the requirement of dual criminality (paras 79-96). If judges’ hands are tied to simply examining the legal niceties of the warrant procedure in this way, who then is to provide the scrutiny a Europe-wide fast-track extradition system needs if not the press?

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And such scrutiny is now doubly urgent. Given the other conclusions reached by this High Court judgment, doesn’t it set a dangerous precedent making it much more likely that EAWs will be used purely on the say-so of the police or an investigating prosecutor from now on? And yet the omertathat has descended over the forensic findings of the Assange extradition case is total – almost global; try Googling for any news story, anywhere that mentions the lack of DNA on the torn, used condom with which Assange is alleged to have sexually molested AA. Honourable exception No. 2: Guy Rundle in the Sydney Morning Herald.

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Reading through the full High Court ruling makes one thing crystal-clear: the EAW system is designed to place mutual recognition – and trust in the ability of other Member states’ justice systems to reach a fair result – above any consideration of the facts in individual cases. Perhaps that is what we are all meant to do from now on – simply trust that those who administer the law as it is enshrined in our bright, shiny new EU Framework Directive are always right, and therefore beyond question and scrutiny. Blind trust, Blind Justice – just not the kind we always thought Blind Justice was supposed to mean.